Smith v. Potter

• Decision Date: 28 November 1911
• Docket Number: 16,314
• Citation: 133 N.W. 437,90 Neb. 298
• Parties: WILLIAM F. SMITH, APPELLEE, v. DAVID G. POTTER ET AL., APPELLEES; WALTER v. HOAGLAND, APPELLANT
• Court: Nebraska Supreme Court

133 N.W. 437

90 Neb. 298

WILLIAM F. SMITH, APPELLEE, v. DAVID G. POTTER ET AL., APPELLEES;

WALTER v. HOAGLAND, APPELLANT

No. 16,314

Supreme Court of Nebraska

November 28, 1911

APPEAL from the district court for Lincoln county: WILLIAM H WESTOVER, JUDGE. Reversed.

REVERSED.

Hoagland & Hoagland and Henry P. Leavitt, for appellant.

Wilcox & Halligan and Albert Muldoon, contra.

OPINION

LETTON, J.

This action was brought to quiet title to a tract of land in Lincoln county. The plaintiff, Smith, claims title through a sheriff's deed issued in tax foreclosure proceedings brought by Lincoln county against David G. Potter and others. The plaintiff prevailed, and, from a judgment quieting the title in him, defendant Hoagland appeals.

In 1887 David G. Potter received a patent to the land in controversy from the United States. In 1892 he executed a note and mortgage to one Buckworth to secure the payment of a note for $ 389, which note was afterwards indorsed to the North Platte National Bank. Afterwards the bank became insolvent, one Doolittle was appointed receiver, and the note and mortgage were sold by the receiver in winding up the affairs of the bank. Defendant Hoagland claims the right to redeem from the tax lien by virtue of his ownership of this note and mortgage and of a decree of foreclosure based thereupon, and by reason of the invalidity of the tax foreclosure proceedings on which plaintiff's title to the land depends. He also alleged that the fee title to the land rested in one Waples. He filed an answer and cross-petition praying that he be allowed to redeem and that the title to the land be quieted in Waples. In 1900 Lincoln county obtained a decree of foreclosure for the delinquent taxes on the land without making a prior administrative sale. Service was had by publication, and the land was sold to satisfy this decree. In 1902 the land was purchased at sheriff's sale by the defendant Wilcox. The plaintiff, William F. Smith, derives his title by mesne conveyances from Wilcox. Plaintiff denies the ownership of the decree by Hoagland, alleges its abandonment by the receiver, and sets up a number of other defenses to the cross-action. It would unduly lengthen this opinion to set out even the substance of the lengthy and much involved pleadings, or to relate the evidence, except upon one or two points.

1. Upon the issues made as to the ownership by Hoagland of the note and mortgage: We held in the case of McCabe v. Reed, 88 Neb. 457, 129 N.W. 1019: "If the defendant in an action to cancel a mortgage produces the notes secured thereby, and it appears that he has controlled and had undisputed possession of the instruments for many years under a claim of title thereto, these facts will sustain a finding that he is the owner thereof, notwithstanding they are indorsed payable to the order of a third person." The testimony of the witness Davis we think is not sufficient to overcome that of Hoagland, supported and corroborated as it was by his possession and production of the papers.

2. It is contended that the tax foreclosure proceedings were void and conveyed no title to Wilcox. This is really...